The Fourteenth Amendment and Native American Citizenship

Maltz, Earl M., Constitutional Commentary

Studies of the federal government's treatment of racial discrimination during the immediate post-Civil War era have dealt almost exclusively with problems related to the status of free blacks. This focus is in many respects entirely understandable. After all, the debate over black rights was a major factor dividing the Republican and Democratic parties, as well as one of the central themes of the entire Reconstruction process. Further, the adoption of both the Civil Rights Act of 1866 and section one of the Fourteenth Amendment itself was a direct response to the adoption of state laws that sharply curtailed the rights of newly-freed slaves. Thus, it should not be surprising that the subject has attracted the attention of most students of race relations, as well as those interested in the period more generally.

Blacks were not, however, the only racial minority in America during the late nineteenth century. The members of the Congress that drafted the Civil Rights Act of 1866 and the Fourteenth Amendment were also well aware of the presence of another group of nonwhites within the territorial boundaries of the United States--Native Americans.(1) Moreover, issues related to the status of Native Americans had a profound impact on the wording of the citizenship clauses of both enactments.

This essay will examine that impact in some detail. The essay will begin by focusing on the status of Native Americans in the antebellum era. It will then follow the drafting process that culminated in the definitions of citizenship contained in both the Civil Rights Act and the Fourteenth Amendment. Finally, it will briefly discuss subsequent developments that resolved the ambiguities remaining after the adoption of the Fourteenth Amendment.

I. THE CONSTITUTIONAL STATUS OF NATIVE AMERICANS PRIOR TO THE CIVIL WAR(2)

The problem of defining the status of Native Americans created substantial theoretical difficulties for early American legal theorists. The difficulties derived from the fact that Native Americans resided on land over which the government of the United States claimed authority by right of conquest. Under then-accepted principles of international law, inhabitants of conquered nations were generally expected to be integrated into the polity of the conquerors as citizens.(3) Thus, it might seem to follow that the Native Americans who occupied that land should be considered citizens of the United States.

The problem was that neither the government nor the white citizenry of the United States was prepared to accept this conclusion. Native Americans were considered to be members of an alien, uncivilized race, whose values were antithetical to those of the dominant white civilization. Conversely, many Native Americans had no desire to become a part of white society, or to be subject to the rules of that society. In a passage that differed from other contemporary descriptions of "Indians" only in its relatively restrained language, Chief Justice John Marshall aptly described the attitude of white Americans toward this issue:

[T]he tribes of Indians inhabiting this country were fierce savages, whose
occupation was war, and whose subsistence was drawn chiefly from the
forest. To leave them in possession of their country, was to leave the
country a wilderness; to govern them as a distinct people, was impossible,
because they were as brave and as high spirited as they were fierce, and
were ready to repel by arms every attempt on their independence.(4)

Marshall would later provide a theoretical foundation for denying American citizenship to Native Americans in Worcester v. Georgia.(5) In Worcester, he suggested that the Cherokee Indians possessed a substantial degree of sovereign authority over their lands, declaring that the agreements between the federal government and the Native Americans "manifestly consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guarantied by the United States. …

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